Fall from Cherry on Top But No Cake: Business Exclusion Clear and Enforceable.

Author:Zalma, Barry
Position:[ON MY RADAR]

* When a farmer allows individuals access to the farm so they can pick cherries off trees in the orchard and buy the cherries at a lesser price than pre-picked cherries it is doing the business of farming. That is a reason why most farmers will buy a business liability policy to protect against the exposure of injury to the public picking cherries off the farmer's trees. A homeowners policy is not designed to cover business losses.

In Western National Assurance Company v. John And Linda Robel, Individually And As Husband And Wife; And Robel's Orchard, A Washington Corporation And/Or Sole Proprietorship Owned By John And Linda Robel; Vicki Posa, A Single Person, No. 35394-0-III, Court Of Appeals Of The State Of Washington Division Three (October 23, 2018) resolved an appeal by Vicki Posa from the trial court's order granting summary judgment to respondent Western National Assurance Company concerning the existence of insurance coverage under a homeowners policy for an injury occurring in an orchard.


Ms. Posa was injured in a fall from a three-legged ladder while picking cherries at a Green Bluff area orchard operated by John and Linda Robel. The Robels offered both pre-picked and u-pick options for customers.

Ms. Posa and a companion arrived at the Robel orchard to pick cherries for themselves. Ms. Posa and her companion spoke to a man named John and each were outfitted with a basket that strapped to the body of the picker. They were directed to the appropriate section of the orchard and told where ladders could be located.

The ladders are ten feet tall and three-legged. While using a ladder, Ms. Posa became unbalanced as the basket filled. She fell, breaking her hand and left foot. She also sustained injuries to her neck, hip, and shoulder. She underwent two surgical procedures and was expected to have additional surgery.

Ms. Posa filed suit against the Robels seeking compensation for her injuries. She alleged that the Robels, doing business as Robel's Orchard, had failed to maintain the orchard in a safe manner and also had failed to properly instruct her on use of the ladder. Western National appointed an attorney to defend the suit and counsel appeared for the Robels.

Western National sued the Robels and Ms. Posa seeking declaratory relief. Western National asserted that the Robel's homeowner's policy did not provide liability coverage for the couple's business operations. The Robels did not appear in the declaratory action and, at...

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